The Supreme Court on Tuesday denied Sen. Lindsey Graham’s request to be protected from testifying before a Georgia grand jury reviewing President Trump’s bid to overturn his 2020 election loss.
With no dissenting votes, the court dismissed a summary appeal by the South Carolina Republican filed by former White House Counsel Don McGahn. He argued the senator was “immune” from questioning under the constitution’s “speech or debate” clause.
The court’s action results in upholding a subpoena issued by the grand jury in Fulton County, Georgia.
Judge Clarence Thomas temporarily stayed the case last month while the full court considered Graham’s appeal.
Although Graham lost his summary motion, the court also appeared to uphold part of his claim, possibly setting the stage for further legal battles.
The brief order noted that lower courts “had accepted that the informal investigations in which Senator Graham was allegedly involved constituted a legislative activity” protected by law.
Graham admitted he had made multiple calls to Brad Raffensperger, Georgia Secretary of State, but said the calls were “fact-finding calls” and consistent with his duties as chair of the Senate Judiciary Committee.
Georgia election officials said Graham called them with questions about the results of the November 2020 election, which Trump narrowly lost in Georgia. Trump was recorded in a call urging an election official to “find” enough votes to change the result.
Raffensperger said Graham suggested the state could discard or void large numbers of mail-in ballots from certain areas.
It’s not clear why prosecutors are seeking Graham’s testimony, but they say the senator was viewed as a witness, not the target of a criminal investigation. They said he could be summoned to testify in mid-November.
The constitution protects members of Congress from being punished and interrogated for “any speech or debate in either house,” and Graham claimed he was acting as a Senate investigator when he called Georgia officials.
But the 11th Circuit Court in Atlanta disagreed in a 3-0 ruling, saying constitutional immunity doesn’t stretch that far.
The judges said the Constitution’s limited immunity for lawmakers “protects the integrity of the legislative process by ensuring the independence of individual lawmakers … but not all a member of Congress can regularly do is legislate under the protections of the speech and debate clause.” “
Two of the three appellate judges who denied Graham’s appeal were nominated and confirmed by Trump when Graham chaired the Senate Judiciary Committee.
The Supreme Court’s decision suggested that Graham might still be able to challenge exactly what kind of information should be off-limits to the grand jury.
https://www.latimes.com/politics/story/2022-11-01/supreme-court-graham-appeal Supreme Court won’t shield Lindsey Graham from testifying